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Background on the Post-Election Crisis in Kenya

August 6, 2009

Since independence, Kenya has had a difficult road to democratic consolidation, and the coalition government currently in power is fragile and stalemated on a range of key reforms. Among the most pressing, at the time of the delegation’s visit, will be the issue of accountability and impunity for those most responsible for the violence that followed the election of December 2007. A sealed list of top suspects has been handed over to Kofi Annan, who led the post-election crisis mediation, and in turn to the International Criminal Court in The Hague, which has promised to take action if Kenya will not. Powerful individuals on both sides of the political divide are suspected to be on the list, and the political elite is in a stand-off on whether to create a special tribunal within Kenya to investigate and prosecute those on the list, or let the ICC lead the effort. Beyond this immediate impasse, constitutional reform, electoral reform (in time for the 2012 elections), effectively tackling corruption, restructuring a highly inequitable economy, and addressing historic grievances around land ownership are all critical challenges that must be overcome if Kenya is to move forward to a more stable and democratic polity.

Kenya’s relative stability over the years is in stark contrast with most of its neighbors. Somalia, Sudan, Ethiopia, Uganda, and Rwanda have all been at various times convulsed by violent conflict far worse than anything Kenya has experienced. But the post-election violence of January 2008, which left over 1,000 dead and some 350,000 displaced, was a stark illustration of the enduring tensions and challenges the country must overcome and the fragility of its democratic trajectory. Kenya has many assets on which to draw—a vibrant civil society and politically engaged citizenry, a free and increasingly competent press, a vocal and increasingly independent parliament, a business sector that aspires for Kenya to compete more fully in the global marketplace, a vocal religious leadership, and a rising younger generation that may be less swayed by personal and ethnic politics. In engaging with Kenya, the United States and other partner countries should seek to strengthen these elements, which ultimately will drive fundamental political change.

The 2008 post-election violence played out largely on ethnic lines, and ethnicity continues to play an inordinate role in Kenyan political life. Ethnic-based violence has a long history in the country, fueled by grievances over land, privilege, and inequality. Successive Kenyan administrations have pitted the majority Kikuyu ethnic group, favored economically and politically by both the colonial powers and by Kenya’s first president Jomo Kenyatta, against smaller ethnic groups, including Luhya, Luo, Kalenjin, Kamba, Kisii and others. Ethnicity continues to be the principal axis on which political elites mobilize constituencies, and elections are more often won on the basis of shrewd ethnic calculus and alliances than on the basis of performance or national vision. The violence following the December 2007 election was not the first of its kind—the 1992 and 1997 elections saw a similar level of death and displacement.

The 2003 elections that brought Mwai Kibaki to power were considered by most observers to be a watershed in Kenya’s history and a major triumph for democratic forces in Kenya. President Daniel arap Moi and his Kenya African National Union (KANU) had maintained a stranglehold on political power for close to 25 years, presiding over the disintegration of the country’s economy and infrastructure, fueling ethnic tensions through political manipulation, and allowing a culture of corruption and patronage to become deeply entrenched in the political arena. Moi’s principal political base was an alliance of minority ethnic groups, seeking to gain ascendancy over a wealthy and previously privileged Kikuyu elite. In 2003, Moi’s handpicked successor Uhuru Kenyatta led the KANU ticket, running against Mwai Kibaki, erstwhile vice president turned opposition leader, who led the National Alliance of Kenya (NAK), coalition. For the first time, both top presidential candidates were from the Kikuyu ethnic group, both led multi-ethnic coalitions, and both drew membership from opposition parties and from the old KANU establishment. Kibaki ran on a platform of anti-corruption reform, free primary education, and a sharp break with the divisive policies of his predecessor, all themes that found widespread resonance within Kenya.

The ultimate deciding factor in the presidential race was opposition leader Raila Odinga, from the Luo ethnic group, who led the Liberal Democratic Party (LDP). Odinga abandoned an alliance with KANU just a few months before the election to join Kibaki’s NAK party in a new coalition called the National Rainbow Coalition (NARC). Odinga brought a large Luo constituency to the race and, when Kibaki was badly injured in a car accident, campaigned energetically on NARC’s behalf. The understanding between Odinga and Kibaki was that in return for Odinga’s support for Kibaki’s presidency, Kibaki would support passage of a constitutional draft that would devolve power away from the presidency and create a new and fully empowered position of Prime Minister, which Odinga would assume.

Kibaki reneged on a number of key promises, including the memorandum of understanding with Odinga. Although some initial attempts were made to curb incentives for corruption, the administration failed to go after in any meaningful way any of the lead personalities in Kenya’s multiple mega-corruption schemes. Many of the top perpetrators held positions in the NARC government. Odinga and his political allies were gradually sidelined within the NARC government, and Kibaki surrounded himself almost exclusively with powerful Kikuyu players from his home district, who came to be known as the “Mt. Kenya mafia.” Kibaki jettisoned the constitutional draft that had been agreed upon, and instead chose to hold a referendum on a new draft that retained sweeping powers for the presidency and made no mention of a prime minister post.

Kenyans resoundingly rejected Kibaki’s draft, giving Odinga a major victory. The victory was largely symbolic, since the status quo remains in place, but was a powerful indication of Odinga’s growing national popularity. Kibaki’s backtracking created a deep rift within the government, and the bitterness and sense of betrayal ultimately fuelled the anger and high-stakes surrounding the 2007 elections. Odinga’s supporters, and many other Kenyans, believed that the government, in the person of Kibaki and his cohorts, was once again bent on Kikuyu supremacy.

The crisis and its aftermath

The run-up to the 2007 elections was largely peaceful. Kibaki led the Party of National Unity (PNU), running on a platform highlighting the country’s economic growth under his tenure, and Odinga, leading the Orange Democratic Movement (ODM), promised constitutional change and more effective anti-corruption measures. But both candidates, in subtle and not so subtle ways used ethnicity and the fear of ethnic dominance or displacement to mobilize support. Pre-election polls showed a country almost evenly divided and a contest too close to call.

Election Day went forward without violent incident. However, as tallying of the vote proceeded, suspicions of major rigging by the electoral commission mounted. Odinga, who had been reportedly winning by 370,000 votes with 90 percent of the constituencies reporting, was ultimately announced the loser by 200,000. There is evidence of irregularities and vote rigging in the field on both sides of the political divide and even greater irregularities and dysfunction in the tallying process in Nairobi. After announcing a victory for Kibaki, the electoral commissioner announced that he was under pressure to announce the vote, and could not be certain that Kibaki was in fact the winner. The U.S. embassy, unlike other donors, quickly endorsed Kibaki’s victory, although eventually reversed itself as evidence of manipulation became increasingly obvious.

With the announcement of results and Kibaki’s hasty swearing in, violent clashes with police erupted in Odinga’s home province of Nyanza and in the densely populated slums of Nairobi. Violence was initially directed primarily against Kikuyu in mixed areas, including the Rift Valley and Western Province, and was followed by reprisal killings against non-Kikuyus primarily in the Rift Valley towns of Naivasha and Nakuru. There was an alarming incidence of sexual violence and rape in Nairobi’s slum areas. The Kenyan police force proved ineffective, and there was widespread documentation of excessive use of force, murder, sexual abuse, and looting.

The international community was quick to respond. Then U.S. Assistant Secretary of State for African Affairs Jendayi Frazer traveled to Nairobi, followed by Secretary of State Condoleezza Rice, to push the two sides to an accommodation. President Kikwete of Tanzania and President Kuffuor of Ghana intervened on behalf of the African Union, Desmond Tutu and Cyril Ramaphosa of South Africa offered their offices, and ultimately, a concerted international push, led by Kofi Annan and by Kenyan civil society groups, pushed the two contenders to join in a grand coalition government, with Kibaki as president and Odinga in newly created position of prime minister. The precise powers of the prime minister were not fully articulated, and Odinga supporters contend that President Kibaki is following neither the letter nor the spirit of the accord. Cabinet positions were to be split 50-50, and to accommodate the many powerful interests at play, the number of ministries was expanded to 44—at great expense and often in ways that make little logical sense. It is in this context that the Ministry of Health was divided into a Ministry for Public Health and Sanitation and a Ministry for Medical Services, one led by a PNU minister, the other by an ODM minister.

In addition to power sharing arrangements, the mediation established four commissions: a Constitutional Review Commission; an Independent Review Commission to examine the electoral process (known as the Kriegler Commission); and Truth, Justice and Reconciliation Commission, and a Commission of Inquiry into Post-Election Violence (known as the Waki Commission). The Kriegler and Waki Commissions have issued their respective reports, the former calling for sweeping electoral reforms prior to the 2012 elections, and the latter calling for the establishment of a Special Kenyan Tribunal to try ringleaders of the violence and for comprehensive reform of the Kenyan police force.

Moving beyond the current impasse will not be easy. The Kenyan leadership agreed to a political compromise under intense international and domestic pressure. But the agreement signed in April 2008 left many pivotal issues undecided, and while the commissions may offer recommendations for reform, there is little evidence of political will to see them implemented. On the one hand, release of the “Waki list” risks an explosion of renewed violence, but also may offer the best hope for chipping away at the country’s entrenched culture of impunity.

U.S. Interests in Kenya

The United States has a great deal at stake in Kenya. The country is the principal gateway to East Africa and the southern Horn, with a major seaport at Mombasa, extensive rail, road, and communications infrastructures, and international airports in Nairobi and Mombasa. The country is a regional economic engine, and the economic disruption as a result of the 2008 crisis had severe impacts on both Rwanda and Uganda.

Kenya has been a strong U.S. security partner in an extremely volatile region. It is a strong and consistent contributor to international peacekeeping operations. Since the 1970s, the United States has maintained military access agreements with the Kenyan government that permit the U.S. military to use Kenyan sea and air bases. These facilities have been used extensively in administering humanitarian assistance to Somalia in the early 1990s and today, to Rwanda post-1994, to the conflict in eastern Democratic Republic of Congo, and to Sudan. Kenya was a lead mediator in Sudan’s North-South Comprehensive Peace Agreement, and has hosted multiple attempts to mediate among Somali factions. It is home to a large and growing Somali refugee population, both in the northern town of Dadaab and in the Nairobi Eastleigh neighborhood. Kenya has recently agreed to try Somali piracy suspects apprehended by foreign navies, something the United States and others have been reluctant to take on. Recent reports suggest that the number of captured pirates is overwhelming the country’s jail and court system, especially in Mombasa, where some 100 suspects are held.

The country has twice been victim of terror attacks—the 1998 bombing of the U.S. embassy, in which 212 Kenyans were killed and 4,000 wounded; and attacks against an Israeli-owned hotel and airliner in Mombasa in 2002. The country has become a growing transit point for illicit drugs emanating from South Asia, with drug traffickers based in Afghanistan and Pakistan reportedly establishing hubs in the predominately Muslim coastal city of Mombasa.

Finally, despite numerous setbacks and enduring challenges in Kenya’s democratic path, there are many engaged, reform-minded Kenyans—in the media, in civil society, and even in government—who continue to push energetically for reform and accountability. These forces coalesced to move the country beyond the Moi years, and will ultimately be the catalyst for further change. Their efforts warrant full U.S. support.